How a Customary Marriage is dissolved in South Africa

Published: 03 November 2018 (395 Views)

In South Africa, the definition of a customary marriage by the Recognition of Customary Marriages Act 120 of 1998 (RCMA) is that it is one that is "negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in our country".

The requirements for the conclusion of a customary marriage are:

Both parties entering the marriage must be over 18 years of age.

Both must have given consent to be married under customary law. In a polygamous marriage, the other wife (wives) also need to give consent to the marriage. The marriage needs to be negotiated, celebrated and entered into according to the parties' relevant traditions and customs. Paying lobola or discussing the payment assists in proving the marriage was negotiated in accordance with custom. But paying lobola is not a legal requirement for a customary marriage and it alone doesn't stand as grounds for a relationship to be recognised as a customary marriage as RCMA does not specifically make the tendering of ilobolo a requirement for the conclusion of a valid customary marriage.

The marriage should be (not must be, it is still valid even if not registered) registered with the Department of Home Affairs so that the relationships' status is unambiguous especially after one spouse dies.

Prior to the RCMA, a customary marriage could be dissolved by the death of the husband provided that the woman was not transferred to one of the younger brothers of the deceased to sire an heir or for the brother to look after the children of his late brother. This practice, worked only if the woman accepted, was called ukungenwa in the Nguni culture. During the lifetime of the husband, owing to ill-treatment or any other valid reason, a woman could return to her father’s household thereby forcing her husband to go fetch her from her family after paying a fine, failing which, it was accepted that the husband did not want to continue with the marriage and the marriage was therefore considered dissolved.These flexible and practical rules developed over a long time and ended up constituting grounds for dissolution of a customary marriage, something the RCMA has taken away by insisting that a customary marriage may be dissolved only by a court ordering a decree of divorce.

All customary marriages are in community of property unless an ante-nuptial agreement explicitly states otherwise.

Section 8 of the RCMA now provides guidance by by stating that a customary marriage is like all marriages also to be dissolved by a decree of divorce granted by a competent court. This means that a customarily married couple divorce following the provisions of the Divorce Act 70 of 1979. The only way to divorce is through a court of law with a signed settlement agreement made an Order of Court.

Velempini Ndlovu (LLB UNISA) is a Director of ExploreALL Immigration Consultancy and can be reached on veapndlovu@gmail.com or +27768297234.